Get documents about "Verified Complaint or Damages
Shared by: alicejenny
-
Stats
- views:
- 12
- posted:
- 9/19/2011
- language:
- English
- pages:
- 12
Document Sample
1
registered users the ability to send or receive electronic mail through equipment located in the
2
State of California, and operates equipment that acts as an intermediary in sending and receiving
3
electronic mail.
4
5 2. Plaintiff owns and maintains computers and other equipment that process electronic
6 mail messages and allow for exchange of electronic mail messages by registered users with
7 others. Electronic mail sent to and from Plaintiff's registered users is processed though and stored
8
on equipment located within the State of California. Plaintiff is a provider of "Internet access
9
service" as defined by 15 U.S.C. § 7702(11) and an "electronic mail service provider" as defined
10
by California Business and Professions Code § 17529.1(h). Plaintiff's service allows registered
11
users to exchange electronic mail messages with any other Internet user who has an Internet
12
electronic mail address anywhere in the world.
13
14 3. Plaintiff is informed and believes and thereon alleges that Defendant EXPERIENCED
15 INTERNET.COM, INC. is, at all times relevant hereto, a corporation duly organized and
16 recognized under the laws of the State of Florida and qualified and doing business as
17 "EXPERIENCED INTERNET.COM, INC." with a principal place of business in Miami, Florida.
18
4. Plaintiff is informed and believes and thereon alleges that Defendant PATRICIA
19
QUESADA is an individual residing in Miami, Florida.
20
21 5. Plaintiff is informed and believes and thereon alleges that Defendant SYLVIA
22 BEDOYA is an individual residing in the State of Florida.
23
24
25
2
Complaint For Damages
1
6. Plaintiff is duly ignorant of the true names and capacities of the Defendants sued herein
2
as DOES 1-50, inclusive, and therefore sue those Defendants by such fictitious names. Plaintiff
3
will amend this Complaint to allege their true names and capacities when ascertained.
4
5 7. Plaintiff is informed and believes and thereon alleges that each of the fictitiously named
6 Defendants is responsible for in some manner for the occurrences herein alleged and the
7 Plaintiff’s damages herein alleged were proximately caused by such occurrences.
8
8. Plaintiff is informed and believe and thereon allege that at all times herein mentioned
9
Defendants were the agents, servants, and employees of their co-Defendants, and in doing the
10
things hereinafter mentioned were acting within the course and scope of their authority as agents,
11
12 servants, and employees with the permission and consent of their co-Defendants.
13
14
Jurisdiction
15
9. Plaintiff and his registered users received unlawful email advertising from Defendants
16
17 in California, and within this Division of the Northern District of California. This Court has
18 subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1338(a). The Court has
19 supplemental jurisdiction over state law claims pursuant to 28 U.S.C. § 1367.
20
10. The Court has personal jurisdiction over the Defendants, who have engaged in business
21
activities in and directed to California, have committed tortuous acts within the forum and have
22
purposefully availed themselves of the opportunity to conduct commercial activities in the
23
forum.
24
25
3
Complaint For Damages
1
Venue
2
3 11. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because substantial
4 amounts of the events giving rise to the claims pled herein occurred in the Northern District of
5 California.
6
7
Legal Background
8
9 12. The United States Congress, in passing the CAN-SPAM1 Act of 2003 determined that
10 "[u]nsolicited commercial e-mail, commonly known as 'spam', has quickly become one of the
11 most pervasive intrusions in the lives of Americans." Congress estimated that by the end of 2003,
12
unwanted electronic mail advertising would account for more than 50% of all electronic mail, in
13
sharp contrast to two years earlier, when such electronic mail accounted for only 8% of all
14
electronic mail. Congress has concluded that the rate of increase of such unwanted messages is
15
"reaching critically high levels."
16
17 13. In addition to plaguing recipients by its sheer volume, unwanted electronic mail
18 advertising is also notoriously deceptive in form and content. In April 2003, the Federal Trade
19 Commission found that 66% of all unwanted electronic mail advertising contains "some kind of
20 false, fraudulent, or misleading information, either in the e-mail's routing information, its subject
21 line, or the body of its message." In fact, the Federal Trade Commission found that "one-third of
22
all [unwanted electronic mail advertising] contains a fraudulent return e-mail address." Congress
23
24 1 CAN-SPAM is an acronym for "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003",
the short title of S. 877 as it was passed by the Senate on November 25, 2003, and agreed to by the House of
25 Representatives on December 8, 2003.
4
Complaint For Damages
1
found that falsified headers "not only trick ISP's increasingly sophisticated filters", but also "lure
2
consumers into mistakenly opening messages from what appears to be people they know."
3
4 14. Congress also found that senders of unwanted electronic mail advertising use false or
5 misleading "From" information, or false or misleading subject lines, or both. According to
6 Congress, the Federal Trade Commission found that 42% of unwanted electronic mail
7 advertising contains misleading subject lines that "trick the recipient into thinking that the e-mail
8
sender has a personal or business relationship with the recipient."
9
15. The economic impact is enormous. Congress noted that a 2001 European union study
10
found that unwanted electronic mail advertising "costs Internet subscribers worldwide $9.4
11
12 billion each year." Congress also noted that estimated costs "to United States businesses… will
13 top $10 billion in 2003."
14 16. With these findings as a backdrop, the United States Congress passed the CAN-SPAM
15
Act and the Federal Trade Commission has promulgated regulations covering unwanted
16
electronic mail advertising which contains sexually oriented material.
17
17. Beginning at least in March, 2004, and continuing intermittently thereafter, Defendants
18
19 have used or caused to be used WILLIAM SILVERSTEIN’s equipment located in the State of
20 California for the purpose of delivery of unsolicited electronic mail advertisements.
21 18. Some of the electronic mail advertisements contained misleading subject lines (e.g.,
22 "RE:Mystuffeye cheergirl6969 would like to meet you online and" and "I wish I could speak to
23 you again oidf[sic]") or sexually explicit subject lines (e.g., "Come loving Jap Teens"
24 and "Girls taking big dongs all the way up their anus") or both (e.g., "His cokk ripped open her
25
5
Complaint For Damages
1
anous she started to scream" and "recursion we cowgirls get kinky"). Defendants failed to prefix
2
the subject line of email messages containing sexually explicit content in the body with
3
"SEXUALLY-EXPLICIT:" as required by16 C.F.R. Part 316 and 15 U.S.C. § 7705(d)(1)(A).
4
5 19. Plaintiff did not request any electronic mail advertising from the Defendants. Plaintiff
6 does not have any existing business or personal relationship with any of the Defendants.
7 20. Plaintiff is informed and believes and thereon alleges that the Defendants' electronic
8
mail advertising was not solicited by the recipients and that none of the Defendants has any
9
existing business or personal relationship with any of the recipients of the unsolicited electronic
10
mail advertisements sent by Defendants to registered users of Plaintiff.
11
12 21. At least some of the unsolicited electronic mail advertisements were delivered, via
13 Plaintiff’s servers, to a personal computer in Santa Clara County, California.
14 22. The unsolicited advertisements consisted of electronic mail messages, the principal
15
purpose of which is to promote, directly or indirectly, the sale or other distribution of goods or
16
services to the recipient.
17
23. Plaintiff alerted Defendants to the fact that the Defendant's unsolicited electronic mail
18
19 advertisements would use or cause to be used WILLIAM SILVERSTEIN’s equipment located in
20 the State of California by notices published on his web sites and in Simple Mail Transfer
21 Protocol (SMTP) banners during the electronic "handshake" occurring during the transfer of
22 electronic mail. Plaintiff also alerted Defendants to the unlawful nature of their email advertising
23 by means of certified mail.
24
25
6
Complaint For Damages
1
24. Despite the warnings, Defendants used or caused to be used Plaintiff's equipment
2
located in the State of California for the purpose of sending unwanted electronic mail advertising
3
in violation of state and federal law.
4
5 25. Plaintiff is informed and believes and thereon alleges that his computers are "protected
6 computers" as that term is defined by 18 U.S.C. § 1030(e)(2)(b). Plaintiff is informed and
7 believes and thereon alleges that Defendants used other "protected computers" as that term is
8
defined by 18 U.S.C. § 1030(e)(2)(b), in the scheme to send unwanted electronic mail
9
advertising.
10
26. Defendants initiated the transmission to Plaintiff's computers of commercial electronic
11
12 mail messages that contained, or were accompanied by, header information that was materially
13 false or materially misleading, including header information that was technically accurate but
14 included an originating electronic mail address, domain name, or Internet Protocol address the
15 access to which for purposes of initiating the message was obtained by means of false or
16 fraudulent pretenses or representations; or a "From" line (the line identifying or purporting to
17 identify a person initiating the message) that did not accurately identify the person who initiated
18
the message; or header information that failed to identify accurately a protected computer used to
19
initiate the message because the person initiating the message knowingly used another protected
20
computer to relay or retransmit the message for purposes of disguising its origin; or some
21
combination thereof.
22
23 //
24 //
25
7
Complaint For Damages
1
First Cause of Action
2
[Violation of the CAN-SPAM Act]
3 (Against All Defendants)
4 27. Plaintiff realleges and incorporates the allegations of paragraphs 1 - 26 as though fully
5 set forth herein.
6
28. Defendants engaged in a pattern or practice of initiating the transmission of commercial
7
electronic mail messages to Plaintiff's computers located in California.
8
29. Defendants engaged in a pattern or practice of initiating email messages that failed to
9
10 contain clear and conspicuous notice that they were advertisements.
11 30. Defendants engaged in a pattern or practice of initiating email messages that failed to
12 contain clear and conspicuous notice that recipients could decline to receive further commercial
13
electronic mail messages from Defendants.
14
31. Defendants engaged in a pattern or practice of initiating email messages that failed to
15
contain any postal address of the sender.
16
17 32. Defendants intentionally used false or misleading header information to impair the
18 ability of Plaintiff and others to identify, locate, or respond to the person who initiated the
19 electronic mail message.
20
33. Defendants commercial electronic mail messages contained sexually oriented material
21
(as defined by 18 U.S.C. 2256) within the body of the mail, in violation of 15 U.S.C. §
22
7705(d)(1)(B). Defendants failed to prefix the subject line of each e-mail with "SEXUALLY-
23
24 EXPLICIT:" as required by 16 C.F.R. Part 316 and 15 U.S.C. § 7705(d)(1)(A).
25
8
Complaint For Damages
1
34. Defendants profited from their wrongful conduct.
2
3 35. Plaintiffs suffered damages as a result of Defendants’ wrongful conduct.
4 WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as
5
hereinafter set forth.
6
7 Second Cause of Action
8 [Violation of California Business & Professions Code § 17529.5)]
(Against All Defendants)
9
36. Plaintiff realleges and incorporates the allegations of paragraphs 1 - 26 as though fully
10
set forth herein.
11
12 37. Defendants sent commercial electronic mail to California electronic mail addresses,
13 including addresses owned by Plaintiff, containing or accompanied by falsified, misrepresented,
14 obscured, or forged header information.
15 38. Defendants' commercial electronic mail contained subject lines intended to, and likely
16 to, mislead recipients, acting reasonably under the circumstances, about a material fact regarding
17
the contents or subject matter of the message.
18
19 39. Defendants failed to label subject lines of the email messages s as required by 16 C.F.R.
20 Part 316 and 15 U.S.C. § 7705(d)(1)(A).
21 40. Defendants profited from their wrongful conduct.
22
41. Plaintiff suffered damages as a result of Defendants’ wrongful conduct.
23
WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as
24
25 hereinafter set forth.
9
Complaint For Damages
1
PRAYER FOR RELIEF
2
3 WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as follows:
4 a. For general damages in an amount to be determined at trial;
5
b. For special damages in an amount to be determined at trial;
6
7 c. For statutory damages under CAN-SPAM in the amount of One Hundred Dollars
8 ($100.00) per electronic mail message in violation of 15 U.S.C. § 7705(a)(1);
9 d. For statutory damages under CAN-SPAM in the amount of Twenty Five Dollars
10
($25.00) per electronic mail message in violation of 15 U.S.C. §§ 7705(a)(5) and
11
7705(d);
12
e. For liquidated damages in the amount of One Thousand Dollars ($1,000.00) per
13
14 electronic mail message in violation of California Business and Professions Code §
15 17529;
16 f. For trebling of the damages award as allowed by law;
17
g. For exemplary damages to punish the Defendants and set an example for others;
18
19 h. For attorneys’ fees as allowed by law;
20 i. For the costs of the suit herein incurred;
21
j. For an order of this Court enjoining Defendants, and each of them, and their agents,
22
servants, and employees, and all persons acting under, in concert with, or for them, for
23
using or causing to be used Plaintiffs equipment located in the State of California to
24
25 deliver unsolicited electronic mail advertisements to Plaintiff’s registered users; and
10
Complaint For Damages
1
k. For other and further relief as the Court may deem just and proper.
2
3 DATED:________________
4
5
INTERNET ATTORNEY
6
7
8 BY:__________________
9
TIMOTHY J. WALTON
10 Attorney for the Plaintiff
11
12
Jury Trial Demand
13
Plaintiff requests a jury trial for all claims a jury trial is available.
14
15 DATED:________________
16 INTERNET ATTORNEY
17
18
19 BY:__________________
20 TIMOTHY J. WALTON
Attorney for the Plaintiff
21
22
23
24
25
11
Complaint For Damages
1
VERIFICATION
2
3 The undersigned, for himself declares:
4 I am the Plaintiff in the above-entitled action. I have read the forgoing complaint and
5
know the contents thereof. With respect to the causes of action alleged by me, the same is true
6
by my own knowledge, except as to those matters which are therein stated on information and
7
belief, and, as to those matters, I believe them to be true.
8
I declare under penalty of perjury under the laws of the United State of America, that the
9
10 forgoing is true and correct.
11 Date:_________________
12
_______________________
13 WILLIAM SILVERSTEIN
14
15
16
17
18
19
20
21
22
23
24
25
12
Complaint For Damages
